The presumption of innocence
requires the “beyond a reasonable doubt” standard of guilt.

The court in re Winship
argued that the costs to an individual of conviction are so high that they
should not be convicted when there is reasonable doubt of their guilt.The court said that the benefit of the
standard is that it assures public confidence in the system, and in particular,
the standard inspires confidence that innocent people don’t get convicted.

Justice Harlan says that the
cost of the “beyond a reasonable doubt” standard is that some guilty people
will go free.He says, however, that
society at large believes it is much worse to convict someone who is
innocent.Therefore, he implies that the
benefits of the standard outweigh the costs.

Notes and Questions

1.Is
it better to let a guilty person go free than to convict an innocent
person?I don’t think it’s obvious.I think it depends on the nature of the crime
and the person being judged.There is a
larger cost in letting someone go free if they are likely to commit another
costly crime, especially a violent crime.On the other hand, the cost of convicting an innocent person for a minor
crime would greatly outweigh the cost of acquitting someone guilty of a minor
crime.I think the standard of guilt
should depend on, among other things, the seriousness of the offense and how
likely it is to be repeated.So I don’t
feel especially committed to Harlan’s position, and extra super not committed
to Blackstone’s ten-for-one position.

2.What
do we mean by onerous?Well, onerous
means burdensome, so this is kind of repetitive.Putting numbers on reasonable doubt is just
playing games, I think.The definition
of reasonable doubt should be directly related to the purpose of the
standard.If the correct number of
innocent people to convict is zero, then the standard should be 100% sure, in
which case no one should ever be convicted.This doesn’t pass a cost-benefit test.We want to pick the level of certainty at which the costs and benefits
balance.

3.Here
we have the rules about how a jury can be instructed as to reasonable
doubt.We are given an example of jury
instructions that were found unconstitutional.The court said these instructions were no good because they would
suggest to the common slob a standard of guilt below the one required by the
Constitution as interpreted by the Supreme Court.

4.What
do I think of each set of jury instructions from the standpoint of a juror, and
how about from the standpoint of a defense attorney?

a.The
language of the “Moral Certainty” instruction is confusing, but that may be
because it’s rather dated.I would be
very confused as a juror today.If I
were a juror in 1850, and the terms had commonly understood meanings, then it
would be helpful, except if the meanings were so commonly understood that
nothing needed to be said.If I were a
defense attorney, I think I would like these instructions precisely because
they are confusing and might get my client off even if he or she is clearly
guilty.

b.This
language is clear and modern.It makes
the comparison between standards of proof in civil and criminal cases.It uses phrases like “firmly convinced”,
“real possibility” and “benefit of the doubt” that are easily
understandable.I think as a juror I
would be more confident in my decision if I was given these instructions.As a defense attorney, I think I would like
the words “benefit of the doubt”, because these are kind of generous
words.They make it sound as though
finding someone not guilty is enlightened or a good deed.

c.This
language is confusing, especially for 1997.The idea is that to convict someone, you must either lack an “abiding
conviction of guilt”, or that conviction of guilt must fluctuate.This is a pretty high standard for reasonable
doubt that I think I would find desirable as a defense lawyer.The only bad part of these instructions if I
represent the defendant is that is explicitly says when you must not
return a verdict of not guilty.

d.If
a reasonable doubt is “just precisely what it says”, why do I need to hear
these instructions?I think I would find
it useful to hear that proof beyond a reasonable doubt is proof I would be
willing to act upon without hesitation.That’s a pretty subjective standard, though, and it would depend on how
risk averse I am in the face of incomplete information.I don’t think the defense attorney would like
this one at all, because in people’s ordinary lives they might be willing to
take risks that are subjectively reasonable but objectively ridiculous.

5.I
don’t think the “No Hesitation” instructions suggest that a doubt based on reason
means that you must have a reason for it.However, intuition cannot be said to be based
on reason, and thus I think these instructions would preclude a juror from
going by his or her gut.